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The Commander in Chief's Signature

By Jack M. Balkin

The Washington Post this morning reports that the White House twice issued memoranda to the CIA authorizing the use of its so-called "enhanced" interrogation techniques. I'm not quite sure why this is breaking news. President Bush, after all, has already boasted that he specifically approved of each of the techniques, and we've now seen the reports of principals' meetings at which the techniques were discussed and authorized in exquisite detail.

What the Post story confirms, I suppose, is that the White House sign-off was written, rather than oral. Why is that important? I'm not sure it is. So what's the importance of the story? Perhaps the following passage offers a clue. The President had already signed off on the CIA techniques once. But then . . .

By the spring of 2004, the concerns among agency officials had multiplied, in part because of shifting views among administration lawyers about what acts might constitute torture, leading Tenet to ask a second time for written confirmation from the White House. This time the reaction was far more reserved, recalled two former intelligence officials. "The Justice Department in particular was resistant," said one former intelligence official who participated in the discussions. "They said it doesn't need to be in writing."

What's that about?

One possibility: When John Yoo was at OLC, the CIA's program was defended in large part on the theory that the President, as Commander in Chief, could authorize conduct that would violate the torture statute and other laws -- and that such a CINC authorization would be a defense to later prosecution. Naturally, those violating the criminal law would be eager to have written proof that they had been acting pursuant to the Commander in Chief's (alleged) constitutional authority. So, for example, the April 4, 2003 Working Group Report (written largely by John Yoo) states that "[w]here the Commander-in-Chief authority is being relied upon, a Presidential written directive would serve to memorialize this authority." Similarly, ABC News later reported (based on notes of a DoD official) that in a meeting held March 8, 2003, a group of top Pentagon lawyers concluded that "we need a presidential letter approving the use of the controversial interrogation to cover those who may be called upon to use them."

We now know, however, that by 2004 the new head of OLC, Jack Goldsmith, was very reluctant to rely upon the Commander in Chief argument. (That's why the Dan Levin OLC Opinion of December 30, 2004, did not include discussion of such an argument.) If the writing the CIA was requesting was of the "Commander in Chief Get Out of Jail Free Card" variety, it is understandable why DOJ might have been "resistant" come 2004: Perhaps the new lawyers there did not wish to approve any documents suggesting that the techniques in question did violate the criminal law -- nor to affirm the view that the President could authorize circumvention of such law.

Just a guess.

Full post as published by Balkinization on October 15, 2008 (boomark / email).